Exhibit objections and rulings on demonstrative materials

📄 Exhibit objections and rulings on demonstrative materials — Tuesday, May 23, 1995

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C:\DEPT103\CRIMINAL\1995\MAY\23\EXHIBIT-OBJECTIONS-AND-RULINGS.DOC

TRIAL

▲ Day 80 of 167

◀ Recess Cross-examination of Renee Montgomery (part 1) ▶

Date: Tuesday, May 23, 1995 • Utterances: 72

Before the jury returned, Judge Ito reviewed demonstrative slides the Defense intended to use during cross-examination. Harmon objected that several labels — 'carry-over,' 'no matches to the Defendant,' and 'no genotypes consistent with O.J.S.' — were argumentative or misleading. Ito ordered specific wording changes (e.g., 'carry-over' to 'mixtures,' adding 're clothing' context) and overruled the remaining objections.

# 1 (The following proceedings were held in open court, out of the presence of the jury:)

# 2 THE COURT:

All right. Back on the record. All parties are again present. Counsel, anything we need to take up before we have the jurors rejoin us?

# 3 MR. HARMON:

Yes, your Honor. The Defense has just provided us with some things that they would like to use on cross-examination.

# 4 THE COURT:

All right. I have what appears to be a color print of this. Mr. Harmon, do you have any particulars--I mean some of these are just demonstrative clip art.

# 5 MR. HARMON:

Selectively demonstrative, which I think we have typically called argumentative, your Honor.

KEY QUOTE

# 6 THE COURT:

All right. How about the summary of results chart?

# 7 MR. HARMON:

Well, 23 total stains tested, that is accurate. 16 stains show carry-over. I haven't heard anybody--

# 8 THE COURT:

What does that indicate, Mr. Blasier?

# 9 MR. BLASIER:

Mixtures.

# 10 MR. HARMON:

Well--

# 11 THE COURT:

All right. And no matches to the Defendant.

# 12 MR. HARMON:

Well, the carry-over means something kind of sinister in this case.

# 13 MR. BLASIER:

Change it to mixtures. That is real easy.

# 14 THE COURT:

We talked about carry-over contamination in the context of Mr. Scheck's cross-examination so that would carry an implication as not accurate in this context.

# 15 MR. HARMON:

I think the no matches to the Defendant is argumentative. They either do or they don't, and I mean if we take the--the rationale that they forced us to try to put things on our result boards, why don't we put who they could be from then. I think that would be fair and consistent, your Honor, to put what it is, not what it is not, because they--

# 16 THE COURT:

Then what do you suggest?

# 17 MR. HARMON:

Well, that is where it gets a little convoluted because there are all sorts of mixture or single stains. To say what it is not doesn't mean anything. To say what it is provides the proper context for it. I can go down the list if you like.

# 18 THE COURT:

It is your record, counsel.

# 19 MR. HARMON:

I think it is argumentative to say that there are no matches, or however they want to describe it, because that ignores what it is. They can clearly say that in argument, but this is not the point to start reaching your argument, your Honor.

# 20 THE COURT:

Well, let me ask you a question: Is this dealing just with the clothing?

# 21 MR. BLASIER:

Just the clothing, yes.

# 22 THE COURT:

Just the clothing.

# 23 MR. BLASIER:

We can change that to "O.J.S. excluded." I mean this is from their test results.

# 24 MR. HARMON:

Well, I thought--I thought this wasn't the time for argument in your exhibits. I mean, that is what the Court has consistently ruled.

# 25 THE COURT:

Yes.

# 26 MR. HARMON:

When we had to modified almost every one of our boards and a statement is a statement, and argument about what it is not is an argument.

# 27 (Discussion held off the record between Defense counsel.)

# 28 MR. BLASIER:

This is their results. He is excluded from all the stains on the clothing. That is all it says.

# 29 THE COURT:

Do you agree with that? With regard to the clothing, not the glove; the clothing.

# 30 MR. HARMON:

Sure. But how you say it--we have results. The results say who they could be from.

# 31 (Discussion held off the record between the Deputy District Attorneys.)

# 32 MR. HARMON:

I am assuming this is in the context of the series of slides, it is the last slide and it is the summary of the sum total of stains that were tested, but it is still argumentative. That is in fact the final outcome of this process, but to say--

# 33 THE COURT:

All right. Mr. Blasier, I'm going to direct you to add summary of results re clothing, victim's clothing, that the term "Carry-over" be changed to mixture, "Mixtures," plural, and you can put "Defendant excluded."

# 34 MR. BLASIER:

I can.

# 35 THE COURT:

Yes. All right. With regards to the D1S80 results Rockingham glove, Mr. Harmon, do you have any objections to this?

# 36 MR. HARMON:

It is going to be worded--that is supposed to point out where the stains are? You see, since this is in a sequence of slides, it is hard to appreciate--

# 37 THE COURT:

Uh-huh.

# 38 MR. HARMON:

--what it is supposed to demonstrate. Would you like--

# 39 THE COURT:

All right. My concern, Mr. Blasier, is with the second glove slide, where you have "No genotypes consistent with O.J.S.," and that does not appear to be correct from the evidence that is here.

# 40 MR. BLASIER:

I think the only stain that has alleles consistent with Mr. Simpson are in the wrist area, those three, G10, 11 and 13. They are mixtures consistent with Mr. Goldman and Nicole Brown Simpson--

# 41 THE COURT:

Uh-huh.

# 42 MR. BLASIER:

--in the body of the glove, but nothing consistent with Mr. Simpson.

# 43 THE COURT:

Is the idea that you are trying to convey here that the wrist area is the only area that you have something consistent with and for remainder of the glove it is not consistent?

# 44 MR. BLASIER:

Correct. All the tests done on the rest of the glove he is excluded.

# 45 (Discussion held off the record between the Deputy District Attorneys.)

# 46 THE COURT:

All right. Any other comment?

# 47 MR. HARMON:

Well, it would be nice if we had overnight to look at these so we don't have to struggle with them now, your Honor.

# 48 MR. BLASIER:

Cross-examination.

# 49 MR. HARMON:

I know it is cross-examination, but he had them yesterday. I mean, we could avoid this stuff, so--you know, this says it all. This is a photograph of the gloves. One of them is on the inside and the others are on the outside and this just has a circle around the cuff of the glove, your Honor.

# 50 MR. BLASIER:

That is as simple as I could make it. Every time I put more stuff on that I get objected to.

KEY QUOTE

# 51 MR. HARMON:

It may be simple, but it is not accurate. Sometimes they deviate.

# 52 MR. BLASIER:

How is it inaccurate?

# 53 (Discussion held off the record between the Deputy District Attorneys.)

# 54 THE COURT:

All right. Mr. Harris, can you make these corrections?

# 55 MR. HARRIS:

Yes, your Honor, right now.

# 56 THE COURT:

All right.

# 57 MR. BLASIER:

On the last slide, rather than "Defendant excluded" can we say "O.J.S. excluded"?

# 58 THE COURT:

Yes.

# 59 (Discussion held off the record between Defense counsel.)

# 60 MR. HARMON:

I mean it is just one side of the glove, your Honor. There is two sides to it.

# 61 THE COURT:

I understand.

# 62 (Discussion held off the record between the Deputy District Attorneys.)

# 63 (Discussion held off the record between Defense counsel.)

# 64 THE COURT:

All right. Any other comment?

# 65 (Discussion held off the record between the Deputy District Attorneys.)

# 66 THE COURT:

Mr. Harmon?

# 67 MR. HARMON:

Just that it oversimplifies something and it is misleading. We have actual photographs of it that actually depict where they are. And to force somebody to say, yeah, that is right when it is not, I don't think we do anybody a service with that.

# 68 THE COURT:

All right. All right. With the corrections ordered by the Court, the other objections will be overruled.

# 69 MR. BLASIER:

Thank you, your Honor.

# 70 MR. COCHRAN:

Thank you, your Honor.

# 71 THE COURT:

All right. Let's have the jurors, please.

# 72 (Brief pause.)

Temperature

tense

Key Quotes (4)

Rockne Harmon

Selectively demonstrative, which I think we have typically called argumentative, your Honor.

Sets the prosecution's framing for the entire exchange — that the Defense's visual choices are advocacy disguised as neutral summaries.

Rockne Harmon

Argument about what it is not is an argument.

Core objection: stating 'no match to Defendant' is argumentative because it frames results by exclusion rather than by what the evidence affirmatively shows.

Lance A. Ito

I'm going to direct you to add summary of results re clothing, victim's clothing, that the term 'Carry-over' be changed to mixture, 'Mixtures,' plural, and you can put 'Defendant excluded.'

The Court's compromise ruling — neutralizing loaded language while permitting the exclusion finding the Defense sought.

Robert Blasier

That is as simple as I could make it. Every time I put more stuff on that I get objected to.

Reveals the Defense's frustration navigating prior rulings that constrained their demonstratives — a moment of candid procedural fatigue.

Evidence (3)

Informal

Defense demonstrative slide: summary chart of 23 clothing stains tested, 16 showing 'carry-over,' with 'no matches to Defendant' language

challenged; Court ordered wording changes before jury use

Informal

Defense demonstrative slide: D1S80 results for Rockingham glove, with notation 'No genotypes consistent with O.J.S.'

challenged as inaccurate; wrist area stains G10, G11, G13 identified as exception; language discussed

Informal

Photograph of gloves with circle around cuff area

challenged as showing only one side of glove and therefore misleading; objection overruled after corrections ordered

Notable Exchanges (3)

Rockne Harmon•Robert Blasier

Back-and-forth over whether 'carry-over' or 'mixtures' is the appropriate neutral term for the clothing stain chart, with Blasier offering to change it and Harmon still objecting to 'no matches' framing.

strategic

Lance A. Ito•Robert Blasier

Judge questions whether 'No genotypes consistent with O.J.S.' is accurate given that wrist stains G10/11/13 had alleles consistent with Simpson; Blasier clarifies those are mixtures consistent with Goldman and Brown Simpson, not Simpson alone.

probing

Rockne Harmon•Robert Blasier

Harmon complains he only received the Defense slides that morning with no overnight review; Blasier responds that it is cross-examination material, implicitly arguing late disclosure is expected.

heated

Light Moments (1)

Robert Blasier

Blasier's exasperated remark that his glove slide was 'as simple as I could make it' and that every addition gets objected to — drawing an implicit contrast with how elaborately the prosecution's boards were constructed.

Objections

4 objections (2 sustained, 2 overruled)

Proceeding 6157 • 72 utterances

Criminal Trial

Department 103